Lucire v Parmegiani

CATCHWORDS: TORT - medical practitioner brings proceedings for defamation, injurious falsehood and misleading or deceptive conduct - application for summary judgment - NSW Medical Board seeks leave to intervene - whether publication made on an occasion protected by absolute privilege - whether claims for injurious falsehood and misleading or deceptive conduct should be struck out

Defamation Act 1974 (NSW), ss 17-19 Defamation Act 2005 (NSW), s 27 and Schedule 1, clause 15 Defamation (Medical Practitioners) Amendment Act 1987 (NSW) Fair Trading Act 1987 (NSW), s 42 Health Care Complaints Act 1993 (NSW) Health Legislation Amendment (Complaints) Act 2004 (NSW), Schedule 1, clause 37 LEGISLATION CITED: Interpretation Act 1987 (NSW), ss 33 and 34 Legal Aid Commission Act 1979 (NSW) Medical Practice Act 1987 (NSW), s 47 Medical Practice Act 1992 (NSW), ss 36, 39, 43, 189 and 196 Medical Practice Amendment Act Medical Practice Amendment Act 2008 (NSW), Schedule 1, clause 4 and 18 Medical Practitioners Act 1938 (NSW), s 50 Trade Practices Act 1975 (Cth), s 52

Agusta Pty Limited v Provident Capital Limited [2008] NSWCA 234 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238 CAL (No 14) Pty Ltd (t/as Tandara Motor Inn v Motor Accidents Insurance Board and Scott [2009] HCA 47 Cabassi v Vila (1940) 64 CLR 130 Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Cretazzo v Lombardi (1975) 13 SASR 4 Cumberland v Clark (1996) 39 NSWLR 514 Darker v Chief Constable of The West Midlands Police [2000] UKHL 44; [2001] 1 AC 435; [2000] 4 All ER 193; [2000] 3 WLR 747 Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 Foley v Radford [2008] NSWDC 167 Ford v Nagle [2004] NSWCA 3 Griffith v Australian Broadcasting Corporation (No 1) [2007] NSWSC 711 Griffiths v Ballard [2005] NSWSC 1530 Jones v Kaney [2010] EWHC 61 (QB); [2010] All E R (D) 131 (Jan) Joyce v Sengupta [1993] 1 All E R 897 Kaplan v Go Daddy Group Inc [2005] NSWSC 636 Kowalczuk v Accom Finance (2008) 252 ALR 55; [2008] NSWCA 343 CASES CITED: Kwang Suk Ra v Nationwide News Pty Ltd [2009] FCA 1308 Lansley v Gaynon [2001] NSWSC 695 Lincoln v Daniels [1962] 1 QB 237 Mann v O'Neill (1997) 191 CLR 204 Merman Pty Ltd v Cockburn Concrete Ltd (1988) 84 ALR 521 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Prestia v Aknar (1996) 40 NSWLR 165 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 Rajski v Carson (1986) 4 NSWLR 735 Rajski v Carson (1988) 15 NSWLR 84 Roach v Electoral Commissioner (2007) 239 ALR 1 Shahid v Australian College of Dermatologists [2008] FCAFC 72 State of New South Wales v Paige [2002] NSWCA 235 State of Victoria & Ors v Richards [2010] VSCA 113 Sullivan v Moody (2001) 207 CLR 562 Swimsure Laboratories Pty Ltd v McDonald [1979] 1 NSWLR 796 Tame v New South Wales (2002) 211 CLR 217 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 Williamson v Zarth (District Court of New South Wales, 8 November 2005, Gibson DCJ, unreported) Zarth v Williamson & Ors [2006] NSWCA 246

Plaintiff: Dr Yolande Lucire PARTIES: Defendant: Dr Julian Parmegiani Intervenor: New South Wales Medical Board

Plaintiff: Mr S Burchett COUNSEL: Defendant: Mr B R McClintock SC / Mr A T S Dawson Intervenor: Ms S Chrysanthou

Plaintiff: Levitt Robinson Solicitors SOLICITORS: Defendant: Holman Webb Lawyers Intervenor: Crown Solicitor's Office

[1] This is an application for summary judgment brought by the defendant to struck out proceedings for defamation, injurious falsehood and breaches of s 42 Fair Trading Act 1987 (NSW). The intervenor, the NSW Medical Board, has made submissions concerning the immunity from action for defamation.

[2] The plaintiff and defendant are both medical practitioners. The plaintiff, by statement of claim filed on 4 August 2009, brings proceedings against the defendant for damages, including aggravated, compensatory, punitive, "actual" and special damages. The causes of action pleaded are defamation, injurious falsehood and breaches of s 42 Fair Trading Act 1987 (NSW). The publication asserted to give rise to these causes of action is a letter written to the Legal Officer of the New South Wales Medical Board ("the Medical Board") which is a schedule to this judgment. It is published in New South Wales only, and not in other States or Territories of Australia. The relevant Act which applies is the Defamation Act 2005 (NSW).

[3] As to the cause of action in defamation, the plaintiff pleads that the matter complained of gives rise to the following imputations: (a) The plaintiff flagrantly breached standards of professional practice or competence. (b) The plaintiff committed perjury. (c) The plaintiff committed a criminal offence. (d) The plaintiff misbehaved in Court. (e) The plaintiff bases her opinion on unusual and false beliefs about the side-effects of psychotropic medication.

[4] As to the Fair Trading Act claim, these imputations are pleaded as having been representations made by the defendant of and concerning the plaintiff.

[5] The recipient of the publication was the Medical Board, which has been granted leave to intervene on 13 November 2009 (by consent of the parties), in support of the notice of motion for summary judgment, brought by the defendant, which is the subject of this judgment.

[6] The matter complained of is a letter sent by the defendant to the NSW Medical Board's legal officer, concerning the conduct of the plaintiff when giving evidence in proceedings heard before another judge in the District Court in July 2008. On 29 October 2009, the defendant filed a notice of motion seeking orders for summary dismissal of the proceedings, pursuant to rr 13.4 and 14.28 Uniform Civil Procedure Rules 2005 (NSW), on the basis that the publication was made on an occasion protected by a statutorily created defence of absolute privilege, pursuant to provisions of s 27 Defamation Act 2005 (NSW) and s 47 Medical Practice Act 1987 (NSW). After argument on 15 December, further submissions asserting a defence of absolute privilege at common law, as well as answering the plaintiff's submissions (the defendants not having complied, on 15 December, with an order to do so) were provided. These submissions added a claim for summary dismissal on the basis of common law absolute privilege.

[7] Pursuant to Pt 28, r 28.2 Uniform Civil Procedure Rules, the Court may determine separate questions of law in the form of a summary dismissal application. Applications of this kind are commonly made in defamation actions where there has been a defence of absolute privilege: Cumberland v Clark (1996) 39 NSWLR 514 at 518G. In Cumberland at 518 - 521, Levine J notes that Courts are similarly prepared to strike out summarily causes of action akin to malicious prosecution (citing Cabassi v Vila (1940) 64 CLR 130, which went to the High Court on a demurrer) and that the courts would not be deterred by the fact that the issues in the case were complex. Applications of this nature are commonly brought where a publication is asserted to be protected by a defence of absolute privilege.

[8] The principal application before the court is the application for summary judgment on the basis of the absolute provision afforded by the relevant provisions of the Defamation Act 2005 (NSW) ("the Act") which, like its predecessor, provides a defence of absolute privilege for a number of publications made to certain bodies, of which the Medical Board is one. In addition, s 24 of the Act does not preclude defences of absolute privilege at common law to be relied upon.

[9] The application for summary judgment concerning the defamation claim is based on the statutory provisions firstly, and also on the common law. Whether or not this succeeds, applications are also brought for summary dismissal of the claims for injurious falsehood (paragraphs 3 and 4 of the statement of claim) and s 42 Fair Trading Act on the basis of "coherence" principles: Tame v New South Wales (2002) 211 CLR 217; Sullivan v Moody (2001) 207 CLR 562; State of New South Wales v Paige [2002] NSWCA 235.

[10] I shall first consider the relevant statutory provisions asserted to support the application for summary judgment concerning the defamation claim.

Absolute privilege under the Defamation Act 2005 (NSW)

[11] Section 27 Defamation Act provides: " 27 Defence of absolute privilege

(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:

(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):

(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and

(ii) the publication of matter while giving evidence before the court or tribunal, and

(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or

(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or

(d) the matter is published by a person or body in any circumstances specified in Schedule 1."

[12] There is a long history in New South Wales of legislation concerning the statutory protection of publication to or by medical boards and other complaints bodies. Such protection was of a qualified nature. These Acts are: (a) Medical Practitioners Act 1938 (NSW), s 50; (b) Defamation Act 1974 (NSW), ss 17-19; (c) Medical Practice Act 1987 (NSW), s 47; (d) Medical Practice Act 1992 (NSW), ss 189 and 196; (e) Health Care Complaints Act 1993 (NSW); (f) Medical Practice Amendment Act (g) Health Legislation Amendment (Complaints) Act 2004 (NSW), Schedule 1, clause 37; (h) Defamation Act 2005 (NSW), Schedule 1, clause 15; (i) Medical Practice Amendment Act 2008 (NSW), Schedule 1, clause 4 and 18;

[13] The statutes which are relevant here are the repealed and current Defamation Acts and s 47 Medical Practice Act 1987 (NSW).

[14] When the Defamation Act 1974 (NSW) was passed, a series of protections were enacted in ss 17-19. Section 17FA was enacted in 1 October 1987, shortly before the decision in Rajski v Carson (1988) 15 NSWLR 84 in which the word "purpose" was considered, concerning s 17F (another statutory provision of absolute immunity, but concerning a publication to the Legal Aid Commission, not to a medical tribunal). The explanatory note related to s 17FA referred to the creation of defences concerning publications in or about or for the purpose of disciplinary proceedings.

[15] Section 17FA was first introduced into the Defamation Act 1974 by the Defamation (Medical Practitioners) Amendment Act 1987 (NSW). This section, in its original form, provided as follows: " 17FA. Matters arising under the Medical Practitioners Act 1938

(iv) a member of any of those bodies as such a member.

for the purpose of the assessment or referral of a complaint or the holding of any inquiry or any appeal under the Medical Practitioners Act 1938; and

(b) for a publication by a body or person referred to in paragraph (a) of a report of a decision or determination in respect of a complaint or an inquiry or appeal, and of the reasons for that decision or determination.

(2) In this section - (a) a reference to the New South Wales Medical Board includes a reference to a committee of the Board; and

(b) a reference to a member of the Board includes a reference to a member of any such committee."

[16] Section 47 Medical Practice Act 1987 (NSW) provides as follows: " 47 Protection of complainants and other persons

(1) If a person makes a complaint, and does so in good faith:

(a) the making of the complaint does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and

(b) no liability for defamation is incurred because of the complaint, and

(c) the making of the complaint does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy.

(2) The protections given to a complainant by this section extend to:

(a) any person who, in good faith, provided the complainant with any information on the basis of which the complaint was made, and

(b) any person who, in good faith, was otherwise concerned in the making of the complaint.

(3) This section does not limit or otherwise affect the operation of section 96 of the Health Care Complaints Act 1993."

[17] The statutory defences of absolute privilege in the 2005 Act are in generally similar terms to the Defamation Act 1974 (NSW).

[18] Schedule 1, clause 15 of the Defamation Act 2005 relevantly provides: " 15 Matters arising under Medical Practice Act 1992

(1) Without limiting section 27 (2) (a)-(c), matter that is published:

(a) to or by any of the following for the purpose of the assessment or referral of a complaint or other matter or the holding of any inquiry, performance review, investigation or appeal under the Medical Practice Act 1992:

(i) the New South Wales Medical Board, (ii) an Impaired Registrants Panel, (iii) a Performance Review Panel, (iv) a Professional Standards Committee, (v) the Medical Tribunal, (vi) a member of any of the bodies referred to in subparagraphs (i)-(v), (vii) an assessor, or

(b) by a body or person referred to in paragraph (a) where the matter published is a report of a decision or determination in respect of a complaint or other matter or any inquiry, performance review, investigation or appeal, or of the reasons for such a decision or determination.

(a) a reference to the New South Wales Medical Board includes a reference to a committee of the Board, and

(b) a reference to a member of the Board includes a reference to a member of any such committee."

[19] Having set out the legislative provisions, I now consider the issues in dispute.

[20] The defendant and the Medical Board submit that all complaints to the Medical Board are protected, and that the circumstances of publication of the matter complained of are therefore protected by absolute privilege by reason of the operation of s 27 Defamation Act 2005.

[21] No cases have yet fallen to be considered pursuant to Schedule 1, clause 15 Defamation Act 2005 but the parties agree it is substantially the same as its predecessor, 17FA Defamation Act 1974.

[22] The question must be determined in accordance with rules of statutory construction looking at the natural and ordinary meaning of the words and if there is any ambiguity by adopting a purposive approach to the reading of legislation: s 33 Interpretation Act 1987 (NSW). The keywords are "for the purpose of the assessment or a referral of a complaint or other matter, or the holding of any inquiry, performance review, investigation or appeal".

[23] The Board submits that where there is an ambiguity in the language of a statute, the Court can look to extrinsic material in order to assist in the interpretation of the provision in question (s 34 Interpretation Act 1987), but that the Second Reading Speech (13 September 2005) and Explanatory Notes offer little assistance.

[24] It is submitted in paragraph 27 of the Medical Board's first set of submissions that the words "for the purpose of the assessment or referral of a complaint" refer to the steps taken in relation to a complaint, which would include the letter of complaint itself. The publication is addressed to the Legal Officer of the Medical Board, there is no dispute that the complaint was published to the Medical Board, and the Medical Board relies upon members of the public and colleagues of medical practitioners to bring matters of concern to its attention and to report misconduct on the part of other practitioners. It is submitted that the protection afforded by s 27 Defamation Act is to ensure individuals who make complaints are able to do so freely and without fear of legal proceedings. For individuals to be sued because they make a complaint would deter them from making complaints and undermine the complaints system.

[25] Having noted these competing submissions, I now consider how to interpret s 27 Defamation Act 2005, having regard to previous decisions concerning the interpretation of similarly drafted provisions of the Defamation Act 1974, a number of which have been the subject of analysis, including analysis by the Court of Appeal.

Interpretations of the meaning of "purpose" in statutory provisions conferring absolute privilege

[26] The starting point for any discussion of the meaning of "purpose" in statutory provisions concerning absolute privilege is Rajski v Carson (1986) 4 NSWLR 735, overturned at (1988) 15 NSWLR 84 at 88C-F.

[27] The facts in Rajski v Carson may briefly be stated. The defendant, a solicitor, wrote to the Legal Aid Commission querying the grant of legal aid to the plaintiff, Dr Rajski. Dr Rajski commenced proceedings for defamation and an application was brought pursuant to s 17F, one of a number of sections inserted into Division 3 "Absolute Privilege" of Pt III "Defence in civil proceedings" Defamation Act 1974 since the statute had been enacted.

[28] These sections shared a common characteristic, namely a statutory recognition of the public policy which provides the basis of the common law defence of absolute privilege, namely that where defamatory matter is communicated on certain occasions, such as to require the person making that communication to do so uninfluenced by the fear of proceedings and the vexation of having to defend them, would have a protection. They also shared, in a number of cases, use of the word "purpose" in the statutory provisions.

[29] It was conceded before Hunt J (in the proceedings at first instance ((1986) 4 NSLWR 735) that an application for Legal Aid, by its very nature, was covered by absolute privilege. It was argued that any other unsolicited communication was not covered by that privilege.

[30] The New South Wales Court of Appeal set aside Hunt J's finding that the letter written by the solicitor questioning the grant of legal aid was published on an occasion protected by absolute privilege pursuant to s 17F Defamation Act 1974. This was because it was a disputed issue of fact as to whether or not the publication to an officer of the Legal Aid Commission raised the question of whether the publication was made "for the purpose of the execution or administration" of the Legal Aid Commission Act 1979 (NSW). It was only where the clear and unassailable object of the correspondent to the Commission was "the execution or administration" of that act where other purposes or objectives are shown to be arguable, the resolution of those issues must be left to be tried by a jury, if a jury was summoned, and if the trial was by judge alone, by the judge (at 92F, 94G and 95B).

[31] Thus the first difficulty is whether there can be summary judgment concerning "purpose" if there are disputed issues of fact concerning the "purpose" of the matter complained of.

[32] Counsel for the plaintiff submits that the factual matrix in this case will include evidence of malice or of false statements, in support of the claims brought for malicious falsehood and pursuant to s 42 Fair Trading Act. If so, such evidence is likely to be evidence relied upon to challenge the purpose of publication. If "purpose" is likely to be a disputed issue of fact, this could lead to the same result as Rajski v Carson (1988) 15 NSWLR 84, for the reasons explained by Kirby P and Hope JA at 94: "Thirdly, we consider that strength is given to these arguments by the very differentiation which appears in s 17 and the succeeding sections of the Defamation Act . The majority of the provisions attracting absolute privilege are expressed in objective terms. The shield of the absolute privilege is readily ascertainable, in a way that will attract the privilege. It is enough, in these cases, that the matter complained of was published in a certain document or to a designated person. Apparently, it was not thought appropriate to give such a wide ambit of protection to correspondence with the Legal Aid Commission. The absolute privilege in such a case was only to be attracted if the publication was shown to be made for the purpose specified. And that purpose was not broadly stated in terms of a matter "incidental to" legal aid or a matter "relevant" thereto. It was limited to "the execution or administration of that Act".

A clue to the meaning to be ascribed to this form of absolute privilege can be seen in some of the comments during the Parliamentary debates which accompanied the passage of the Bill that introduced s 17 F into the Act. It was suggested that its purpose was to protect persons making allegations against others in the course of seeking the assistance of the Commission. The phrase adopted is not so narrow. But nor is it at large as the respondents urge. A characterisation is required of the "purpose". Unless the conduct so characterised, falls within that "purpose", it must seek protection elsewhere, for example, under a defence of qualified privilege. The distinctions drawn in the Act, including in s 17 F , suggest a high degree of specificity on the part of the legislature. It is therefore necessary, in each case, to characterise the "purpose" of the publication. It is clearly contemplated that, in some cases, the "purpose" will not be such as will attract the privilege. Otherwise, Parliament would have used the formulae adopted to protect other correspondence simply because it was addressed to a particular person or authority."

[33] Having regard to the manner in which "purpose" is explained by the New South Wales Court of Appeal in Rajski v Carson, the application for summary judgment cannot be granted if this is a disputed issue of fact for the trial.

[34] As to evidence of the kind necessary to displace "purpose" I note that in Foley v Radford [2008] NSWDC 167 at [38] and [39], Donovan DCJ made findings of fact in relation to a letter of complaint sent to the Legal Services Commissioner that the letter was not sent for the purpose referred to, applying the test in Rajski v Carson. This was because s 17J Defamation Act 1974 contains the same requirement of "purpose". Similarly, an award of damages, on the basis of an improper purpose having been made out, was made in Williamson v Zarth (District Court of New South Wales, 8 November 2005, Gibson DCJ, unreported) and was not disturbed by the Court of Appeal: Zarth v Williamson & Ors [2006] NSWCA 246 at [40].

[35] A more relevant decision, for summary judgment purposes, is Lansley v Gaynon [2001] NSWSC 695, where Grove J heard an application for summary judgment concerning the contents of a complaint to the Legal Services Commissioner on the basis that s 17J referred to a publication "for the purpose of the making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt 10 of the Legal Profession Act 1987". Grove J noted that the document was "incontestably" one which fell within the designated purpose. The question, in my view, is whether the clear and unassailable object of the defendant's letter to the Medical Board was the purpose set out in the statute.

[36] However, is this publication one which is has the clear and unassailable purpose of being a complaint for the purpose? This was the first subject of challenge by the plaintiff.

[37] The plaintiff first challenged whether the publication was capable of constituting a "complaint" within the meaning of the Medical Practice Act 1992. The plaintiff in written submissions (paragraph 9) relies upon the following failures to comply with procedures: (a) The complaint must be made to the Medical Board or the Health Care Complaints Commission, not the Legal Officer;

(b) The defendant's letter is asserted to fail to provide particulars of any allegation able to found a complaint (contrary to ss 36, 39 and 43 Medical Practice Act 1992);

(c) The defendant's letter is not a letter initiating a complaint but a reply to a letter from the Registrar;

(d) Although the defendant states a belief that medical practitioners are under a compulsory obligation, the enactment of the compulsory reporting procedure in s 71A (Ins 2008 No 27, Sch 1[18]) came into force after the date of publication of the matter complained of;

(e) Even if the letter did constitute a "complaint", it was not a step in disciplinary proceedings of a judicial or quasi-judicial nature because as a result of the lack of particulars as required by s 43 it could not be referred for commencement of disciplinary proceedings but only considered and investigated by the Board or Commission (under s 43(2)). In addition, it is not the complaint itself but its referral which commences the disciplinary proceedings by way of inquiry. (under s 159 or s 175). The Board has a wide range of options which include administrative functions. In other words, the Board acts as a clearing-house for complaints, like the Bar Council in Lincoln v Daniels [1962] 1 QB 237 (cited in Mann v O'Neill (1997) 191 CLR 204 at 215).

[38] Further, having regard to the particularisation by the plaintiff in the pleading that the "defendant's purpose and motive in writing was to denigrate the plaintiff" and to "injure her in her professional reputation" adding the words "among other matters" (paragraph 5(c) of the statement of claim), there is some evidence of a claim of malice of the kind which may be read as evidence of a purpose other than the protected purpose. The plaintiff's submissions (at paragraph 21) clearly take this point and submit that this is an arguable issue of fact and one which it is not appropriate to determine in advance of the trial, citing Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723 - 724.

[39] The form and content of the matter complained of could not be clearer. It is a complaint by a practitioner to the Board about another practitioner. It is in the same category as, for an example, an application for legal aid to the Legal Aid Commission. That is the key to the decision in Rajski; the matter complained of was not a legal aid application, but a letter from Mr Carson to the Legal Aid Commission challenging the grant of legal aid to Dr Rajski.

[40] As Kirby P and Hope JA explain (at 90), the word "purpose" is common to a number of the specific defences of absolute privilege under the Defamation Act. If in every case a party was forced to give evidence of the "purpose" of the document, the whole point of the privilege would be lost (at 91). The question is whether the publication was made for the purpose specified in the Act (at 92). An application for legal aid was clearly an application made for the purpose; a letter from the litigant on the opposing side of the legally aided person challenging the grant of legal aid was one where the question of "purpose" was a disputed fact, was not written for that clear and unassailable purpose.

[41] It was this reasoning which led Grove J to find the publication in Lansley v Gaynon was protected, and I respectfully adopt the same approach to the present proceedings and come to the same conclusion.

[42] By reason of this finding it is not necessary for me to express any view as to whether the Court of Appeal's decision is bad in law and should not be followed, a submission put to me by Mr McClintock SC. Nor is it necessary for me to consider any dispute as to delineation between "purpose" and "motive" as I have found that the defendant's letter is, on its face, a complaint, and that Rajski v Carson may be distinguished for the same reasons here as it was in Lansley v Gaynon.

[43] Although I am satisfied that the statutory defence applies, I must also consider the availability of this defence at common law.

[44] Both parties agree that the classic statement of the position at common law is the decision of the High Court in Mann v O'Neill (1997) 191 CLR 204, which provides a defence of qualified privilege for a publication initiating a process of complaint.

[45] Referring, inter alia, to Rajski v Carson in the footnotes, the High Court in Mann v O'Neill explained the rationale for this limitation at 262: "The strength of this resistance was important to this court's resolution in Gibbons v Duffell . It was there held that a report made in the course of his duty by an inspector of police to his superior officer, containing defamatory references concerning a subordinate officer, was not the subject of absolute privilege. In so holding, this court reversed the decision of the Full Court of the Supreme Court of New South Wales. The presumption against the privilege and the disfavour to its extension expressed in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson was central to this court's reasoning. Evatt J, for example, cited with approval the comment of Mr E E Williams in 1909:

"Absolute immunity from the consequences of defamation is so serious a derogation from the citizen's right to the State's protection of his good name that its existence at all can only be conceded in those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civic protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated."

There are many similar assertions of this approach.

Nor are the courts alone in voicing hesitation against expansion of the categories of absolute privilege. Law reform bodies have, with one voice, expressed similar views. The Australian Law Reform Commission, in its review of the law of defamation, rejected submissions that it should recommend the limitation of absolute privilege, particularly in the case of parliamentary proceedings where many complaints were received of abuse and use for improper motives. The Commission commented that "[m]any important functions, of a quasi-judicial nature, are now entrusted to administrative tribunals". Its recommendations relevantly proposed that the immunity be extended to "all courts and tribunals conducting an inquiry, hearing or proceeding in any place under the authority of a law … or under the executive power of the Commonwealth or of a State". Under the Commission's proposal, which has not been enacted, absolute immunity might have been attracted to the conduct of an inquiry initiated by the Governor-General into a complaint of incapacity against a judicial officer. But the Commission was there consciously expanding the categories of tribunal protection. It held back from any wider expansion.

In a more recent report on the law of defamation, the New South Wales Law Reform Commission noted, in respect of investigative and disciplinary bodies, that it was "not always clear whether their proceedings are judicial proceedings for the purposes of absolute privilege at common law". The Commission remarked on the range of legislation in New South Wales under which parliament has expressly provided absolute privilege to the proceedings of specified bodies. It recorded various submissions from private and public bodies seeking absolute privilege. But it concluded that it was not persuaded of the need to amend the general law on absolute privilege. It contented itself with recommending a clarification of the law; but not its expansion."

[46] The NSW Medical Board notes at paragraphs 15 and 17 the availability of a common law defence but makes no submissions.

[47] I respectfully adopt and follow the clearly stated principles of law set out in Mann v O'Neill. The protection afforded by the common law is one of qualified privilege only.

[48] The defendant in his first set of submissions asserts that as a matter of "coherence of law" (written submissions paragraphs 5 - 15) the claim for injurious falsehood should be struck out, asserting that there are occasions upon which public policy and convenience require that a person be wholly free even from the risk of responsibility for the publication of defamatory material, and referring to Tame v New South Wales (2002) 211 CLR 217 at [28], [58], [123], [191] and [323], Sullivan v Moody (2001) 207 CLR 562 at 581 ([55]) and State of New South Wales v Paige [2002] NSWCA 235.

[49] The NSW Medical Board makes no submission to the effect that the letter is immune from suit for injurious falsehood.

[50] The defendant makes this submission whether or not he is successful in the summary judgment application in relation to defamation proceedings.

[51] In the defendant's further submissions, attention is drawn to the reference of some categories of absolute privilege in terms of "immunity from suit" (second written submissions paragraphs 44 - 45). Gatley at [13.2] notes that this is perhaps, firstly, because this phrase conveys the meaning more clearly than traditional usage, and, secondly, because the protection of the defendant in some circumstances goes beyond defamation and into other areas of tort law: Darker v Chief Constable of The West Midlands Police [2000] UKHL 44; [2001] 1 AC 435; [2000] 4 All ER 193; [2000] 3 WLR 747.

[52] Although not developed by the defendant in submissions, Darker v Chief Constable of The West Midlands Police is one of a series of decisions on immunity from suit which carefully draw exceptions to the general rule of immunity from suit. Darker v Chief Constable of The West Midlands Police was the classic example of an action brought for defamation against a witness or a court official. In Darker v Chief Constable of The West Midlands Police, the claimants brought proceedings for conspiracy to injure and the tort of misfeasance of public officers against police officers who fabricated statements asserting the suspect made an admission he had never made. The House of Lords, allowing the appeal, held that witness immunity in civil action did not extend to steps taken for the wrongful purpose of fabricating false evidence, which would be referred to in an untruthful statement of evidence. In Jones v Kaney [2010] EWHC 61 (QB); [2010] All E R (D) 131 (Jan) Blake J went further, noting that there was a substantial likelihood, given the impact of human rights legislation in the United Kingdom, that on re-examination by a superior court, it would emerge that the public policy justification for a blanket immunity for all witnesses, indiscrimately protecting all witnesses, may be too broad to be sustainable and therefore disproportionate as the public benefit of truthful, accurate and reliable evidence to the court was unlikely to need such a broad immunity when the court could of its own motion enforce these requirements. Statements in Gatley need to be read with these factors in mind, and in fact Gatley goes on to refer, in [13.2], to the impact of human rights legislation in the United Kingdom.

[53] In summary, Darker v Chief Constable of The West Midlands Police is not only authority to the contrary of the defendant's contentions but, because of the divergence of English and Australian law, should be treated with caution, and I note that in Griffiths v Ballard [2005] NSWSC 1530 at [39], Rothman J considered Darker v Chief Constable of The West Midlands Police was inconsistent with Australian authority and ought not to be followed.

[54] The situation in Australia concerning immunity from suit remains conservative and unlikely to change, given the High Court's reservations about the doctrine of proportionality and the margin of appreciation referring to in human rights law decisions from the United Kingdom being applied in cases concerning freedom of communication: Roach v Electoral Commissioner (2007) 239 ALR 1 at [17] per Gleeson CJ and at [181] per Heydon J.

[55] This brings me to the question of "coherence". If the plaintiff's claim for defamation is struck out, is she still entitled to bring a claim for injurious falsehood? The NSW Court of Appeal in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 struck out a claim for defamation brought by a council on grounds other than a statutory defence of absolute privilege, but expressly permitted a claim for injurious falsehood. Should the same happen here?

[56] The defendant in Ballina Shire Council v Ringland, noting the House of Lords had expressly stated that a council could bring an action for injurious falsehood, did not bring any attack on the injurious falsehood claim on the Derbyshire basis (Derbyshire County Council v Times Newspapers Ltd [1993] AC 534), as Gleeson CJ explained (at 684): "The defendant also disclaimed any suggestion that the corollary of the decision of the House of Lords was that a local government authority cannot maintain an action for injurious falsehood. As will appear below, the arguments in relation to the Council's claim for damages for injurious falsehood were put upon a different basis. It was accepted that, in an appropriate case, a local government authority may sue for injurious falsehood."

[57] An action for defamation may often include a claim for damages on an alternate basis arising from another cause of action. In Griffith v Australian Broadcasting Corporation (No 1) [2007] NSWSC 711 a claim for injurious falsehood was struck out on the factual evidence; Kirby J did not determine a separate argument of issue estoppel based on a jury finding that the imputation in question was not defamatory. In Kaplan v Go Daddy Group Inc [2005] NSWSC 636 a motor vehicle dealer operating as Hunter Holden obtained interim injunctive relief, in an action for injurious falsehood, against a dissatisfied customer's publications on a website, www.hunterholdensucks.com. White J noted that there was an arguable case for an injunction and that if that were the cause of action relied upon, it would be difficult for the plaintiff to obtain injunctive relief. White J, at [38] - [44], rejected what appears to have been a "coherence" argument that the same "special principles" for defamation concerning free speech on the internet should apply to injurious falsehood actions.

[58] The House of Lords in Derbyshire County Council v Times Newspapers Ltd also expressly noted the entitlement of a plaintiff council to bring an action for injurious falsehood. The Court of Appeal noted in Ballina Shire Council v Ringland at 693-694: "The second of the three questions formulated for the determination of this Court does not raise the issue discussed above. It raises a different question, and one to which there is a fairly ready answer. It asks whether an action for injurious falsehood can be brought in relation to the publication of false matter which is also allegedly defamatory. I see no reason in principle why not. Although it is clear that an action for injurious falsehood may lie in many cases where there has been no defamation of the plaintiff, it is easy to think of examples where the words published are also defamatory. To take one of the examples given above, if the article in the Daily Mail had alleged, not only that the plaintiff's house was haunted, but also that he knew it, and was concealing it from prospective tenants, it would also be defamatory of the plaintiff. However, the interest protected by a claim for defamation (the plaintiff's personal reputation) would be quite different from the interest protected by the action for injurious falsehood (the plaintiff's business as a landlord). Moreover, to succeed in an action to vindicate the latter interest the plaintiff would have to prove actual damage, whereas in the former case damage would be assumed.

An example of a publication that was potentially both defamatory and an injurious falsehood is to be found in Edelsten v Australian Broadcasting Corporation (1984) Australian Tort Reports 80-672. (See also Griffiths v Benn (1911) 27 TLR 346 and Swimsure (Laboratories) Pty Ltd v McDonald (1979) 2 NSWLR 796.)

The House of Lords did not see, and nor, with respect, do I, any inconsistency between denying to a council a right to sue for defamation, and acknowledging a right to sue for injurious falsehood. The tort of defamation protects reputation, and it does so in a manner that involves a balancing of various considerations including the right of free speech. The tort of injurious falsehood protects against provable economic loss resulting from false and malicious statements. It is one thing to say that freedom of political debate in a democracy is incompatible with allowing elected government bodies to invoke the law of defamation to vindicate their governmental reputation. It is another thing to say that such bodies can, with impunity, be made the targets of false and malicious statements aimed at causing, and causing, financial harm."

[59] I respectfully adopt and follow the Court of Appeal's explanation of the entitlement of the Council to bring a claim for injurious falsehood.

[60] The defamation claim in Ballina Shire Council v Ringland was struck out on the basis of common law principles. In the present case, I have found that there is no common law immunity; the protection is statutory in nature. The plaintiff's counsel, in his helpful first set of written submissions (written before the defendant changed his position concerning the availability of the common law defence), points out that the privilege relied upon by the defendant is wholly statutory, and that the statutory limits on liability are specific to the causes of action to which they relate, and the maxim expresso unius est exclusio alterius applies, citing Pearce, "Statutory Interpretation in Australia", 6th ed., [4.28].

[61] The plaintiff's written submissions point out, correctly, that there is no authority to support the judicial extension of a legislative immunity beyond its stated subject on the grounds of "coherence" with a similar subject. The point made in Tame v State of New South Wales was one of the correct choice of cause of action between common law causes of action in the context of the scope of an alleged duty of care of a police officer to write up a traffic accident report correctly.

[62] In the defendant's second submissions, the entitlement of a claim of absolute privilege at common law has also been raised. If the claim for defamation were struck out at common law, would this make a difference?

[63] In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 the Court of Appeal rejected claims of coherence in relation to a claim for defamation and trespass (the claim for defamation having failed). Spigelman CJ noted: "[34] The appellants' written submissions suggested that there was some issue of coherence between the balancing of interests by the law of defamation and recovery for trespass to land in circumstances leading to a publication which is defensible in defamation law. I can see no issue of coherence. The considerations which ensure that proper weight is given to the public interest in freedom of speech do not arise. The conduct leading to and constituting the trespass had nothing to do with freedom of speech."

[64] The defendant also relies upon the High Court's discussion of coherence in Sullivan v Moody at [42] as follows: "The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care."

[65] This was further discussed by the High Court in CAL (No 14) Pty Ltd (t/as Tandara Motor Inn v Motor Accidents Insurance Board and Scott [2009] HCA 47 at [42]: "42. Conclusion on legal coherence. In the words of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody , to conclude that the law of negligence creates a duty in the present circumstances "would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms.""

[66] In both these cases, the claim sought to extend the law of negligence to impose a duty of care where not only had one not previously existed, but it was inconsistent with other duties. That is not the case here. Actions for defamation are commonly brought in conjunction with claims for injurious falsehood, breaches of consumer legislation or both.

[67] Submissions that the decisions of the High Court in Tame and Sullivan lay down a new approach to the assessment of conflicting duties, and can be relied upon to strike out otherwise maintainable actions on the basis of "inconsistency" or "incoherence" have been rejected by the Court of Appeal in the Supreme Court of Victoria in State of Victoria & Ors v Richards [2010] VSCA 113 at [29] - [31] per Redlich J. The plaintiff in those proceedings was a bystander who was sprayed by capsicum spray during a police arrest and brought proceedings for negligence against the police. An application was brought to strike out the claim on the basis, inter alia, of "incoherence" (at [10] - [13]). The Court held that on the facts pleaded (this being a summary judgment application) it was unreasonable for the police to have used the spray, and that persons seeking immunity from negligence liability for direct physical injury would have to overcome a heavy burden of justice for such a dispensation.

[68] If the defamation claim remains on foot, can a claim of injurious falsehood and/or misleading or deceptive conduct be struck out on the basis that the claim should be restricted only to a claim of defamation? Counsel has not taken me to any authority to support such a contention.

[69] However, even if the claim for defamation were struck out (whether on a common law or statutory basis), if those principles related only to the defamation action, no claim of "coherence" could be brought to deny the plaintiff the right to bring another cause of action such as injurious falsehood, for the reasons explained by the Court of Appeal in Ballina Shire Council v Ringland, supra.

[70] Nor is it the case that a plaintiff can be forced to bring a claim in defamation and not injurious falsehood: Joyce v Sengupta [1993] 1 All E R 897; see also Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at 11. The comments by Hunt J in Swimsure Laboratories Pty Ltd v McDonald [1979] 1 NSWLR 796 arose from the bringing of an application for injunction which the plaintiff sought to frame in injurious falsehood rather than defamation to avoid the higher test for injunctive relief in defamation proceedings. However, Hunt J did not go so far as to say that an action for injurious falsehood could not be brought at all.

[71] A good way to test these submissions of incoherence is to apply the argument to facts where one or more litigants are involved in litigation where, by reason of statutory or common law bars, there is no entitlement to bring one particular cause of action. For example, corporations employing more than ten persons, a government body and a deceased person cannot bring actions for defamation. If what the defendants say is correct, then the effect of these prohibitions is not limited to one cause of action, but to all causes of action. If, for example, a false claim was made that public hospitals were sending bodies to a big corporation for use in making "Soylent Green" hamburgers, the principles of coherence arising from statutory or common law prohibition of suit could be used to prevent claims for other causes of action, such as injurious falsehood, nervous shock or misleading or deceptive statements. This would amount to an immunity from liability for publication when the purpose of the prohibition is to prevent only specific causes of action (such as the right of a large corporation or government body to sue for defamation), which is in effect contrary to the concept of coherence.

[72] The application to strike out the claim for injurious falsehood on the basis of "coherence" fails. I have made a similar finding in relation to the Fair Trading Act claim, which is attacked on a number of bases as well as coherence.

[73] The defendant submits that publication of the Medical Board letter is incapable of being characterised as being published "in trade or commerce" because the Fair Trading Act extends only to professional activities which of their nature bear a trading or commercial character, citing Prestia v Aknar (1996) 40 NSWLR 165.

[74] The plaintiff, in submissions in reply, points out that Prestia v Aknar was overruled by the NSW Court of Appeal in Kowalczuk v Accom Finance (2008) 252 ALR 55; [2008] NSWCA 343 at [342] - [350] where the Court preferred the view of the Full Court of the Federal Court in Shahid v Australian College of Dermatologists [2008] FCAFC 72. I shall accordingly be guided by the wider interpretation of "any professional activity" set out in these decisions.

[75] The defendant further submits that it is "unarguable" that the letter was sent as part of the defendant's professional obligations to a professional body, the inference being that the bringing of a complaint is not conduct falling within the parameters of s 42 Fair Trading Act. However, the bringing of complaints has long been regarded as conduct being capable of giving rise to a cause of action under s 52 Trade Practices Act 1975 (Cth): Merman Pty Ltd v Cockburn Concrete Ltd (1988) 84 ALR 521. Merman Pty Ltd v Cockburn Concrete Ltd was referred to as providing a "helpful discussion of authority" by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594.

[76] I also note, in relation to "coherence" challenges to Trade Practices Act and Fair Trading Act claims that, although the High Court noted in Concrete Constructions (NSW) Pty Ltd v Nelson that s 52 was "not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray" (a phrase also occurring in the dissenting judgment of Brennan J in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 324), there has been no suggestion in subsequent decisions of the Federal Court of Australia that a doctrine of coherence prevents the bringing of defamation proceedings coupled with actions brought under the Trade Practices Act. In Kwang Suk Ra v Nationwide News Pty Ltd [2009] FCA 1308 Rares J ordered a jury of twelve be empanelled for a plaintiff who brought proceedings for breaches of s 53B Trade Practices Act and for defamation. Similarly, in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, a perceived inconsistency between the Trade Practices Act 1974 (Cth) and legislation prohibiting the bringing of cross-claims did not result in the striking out of the Trade Practices Act claim on the basis of "coherence". If the defendant is suggesting that a plaintiff should be restricted in pleading defamation actions as defamation actions only, and not as a "side-wind" cause of action under consumer protection laws, such a claim is misconceived whether or not the claim for defamation is liable to be struck out on a summary basis.

[77] The assertion in the first set of submissions from the defendant that s 27 Defamation Act 2005 impliedly repealed any remedy under the Fair Trading Act is also misconceived. This section and the legislative scheme of which it forms part is specific in its scope to the law of defamation and does not provide immunity from suit for other causes of action should they arise.

[78] I dismiss the application to strike out the claim made pursuant to s 24 of the Fair Trading Act.

[79] These proceedings were listed for argument on 15 December 2009 but were unable to be completed that day. This was because a number of issues were not dealt with in the defendant's written submissions. The major matters not dealt with were: (a) The defendant's submissions did not refer to the cases discussing the use of the word "purpose" and in particular Rajski v Carson (1986) 4 NSWLR 735 and Lansley v Gaynon [2001] NSWSC 695.

(b) The defendant had not provided submissions in reply in accordance with the timetable, which made it difficult for me to deal with the plaintiff's submission that Prestia v Aknar [1995] NSWCA 378 CA had been overruled.

(c) The defendant's submissions on injurious falsehood and did not refer to Ballina Shire Council v Ringland (1994) 33 NSWLR 680.

(d) The defendant's change of position concerning the claim of absolute privilege on common law principles.

[80] The defendant now brings an application to set aside the costs order made on 15 December 2009.

[81] This defendant's application to set aside the costs order raises a problem not uncommonly found in busy trial courts, where judges hear motions and determine legal issues largely on the legal principles as distilled for them by the parties' legal representatives, often without the time to carry out independent research.

[82] If the judge is not referred to precedent which is essential to the reasoning process, or is not addressed as to relevant facts in the case, what should the judge do? The appropriate course in my view is the course adopted by the trial judge in Ford v Nagle [2004] NSWCA 3, namely to refer the parties to the relevant authority and, if necessary, relist the matter for further argument.

[83] The obligation of a party is to provide not only the trial judge, but also the opposing party, with relevant authority. In Agusta Pty Limited v Provident Capital Limited [2008] NSWCA 234, McColl JA noted at [2]: "[2] ... It is to be kept in mind that:

"In the common law system of civil justice the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal": Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 per Gleeson CJ at [2].""

[84] I note that Mr Dawson replaced another barrister at short notice due to ill health and that this is the reason for failure to provide submissions in reply. However, the obligation of the defendant to explain, discuss and (if necessary) distinguish the cases referred to at [105] above in the first set of submissions in support of the application created difficulty and delay. Accordingly, I am not prepared to set aside the costs order I made on 15 December 2009.

[85] The plaintiff has been substantially successful. Three of the four applications for summary judgment have failed (I have counted the common law claim as the fourth application). While I note that as a general rule a court should be careful to avoid undue precision in making costs orders according to success on specific issues (Cretazzo v Lombardi (1975) 13 SASR 4), I consider the appropriate award should be that the defendant should pay two thirds of the plaintiff's costs of the hearing of the application before me on 14 April 2010, to allow for his success on the statutory absolute privilege claim.

Orders (1) Plaintiff's claim for defamation in paragraph 2 to 3 of the Statement of Claim dismissed. (2) Defendant's application for summary judgment concerning the injurious falsehood claim in paragraph 4 and the Fair Trading Act claim in paragraph 5 of the Statement of Claim dismissed. (3) Defendant's application to set aside costs order of 15 December 2009 dismissed. (4) Defendant pay 2/3 of the plaintiff's costs of these proceedings other than the 15 December 2009 costs. (5) Matter stood over for further directions to Friday 11 June 2010 at 9:00am.

Att: Ms Miranda St Hill Legal Officer NSW Medical Board DX 22808 Gladesville

Thank you for your letter dated 1 August 2008, in response to my letter of 29 July 2008. I understand it is now an obligation of medical practitioners in New South Wales to report flagrant breaches of standards of professional practice or competence. I will now to provide further details, identifying the medical practitioner.

I was retained by the Crown Solicitor's Office as an expert witness in a personal injury matter. The plaintiff's solicitors engaged Dr Yolande Lucire, specialist psychiatrist, to prepare an expert opinion. The matter was:

The hearing was held in the NSW District Court, on 14 July 2008. I was called to give evidence at 2 pm, at the John Maddison Tower. The instructing solicitor was Ms Lisa Hemingway, of the Crown Solicitor's Office, DX 19 Sydney, Tel 02 9224 5326.

I arrived at the requested time, and sat in the court while that Dr Lucire finished giving her sworn evidence. Her opinion was based on her unusual beliefs about side effects of psychotropic medication. While I am concerned about Dr Lucire's professional standards, and unnecessary costs to society as an expert witness, her behaviour in court was of greater concern.

Dr Lucire was asked on repeated occasions whether the New South Wales Medical Board had placed conditions on her registration. Each time Dr Lucire denied it. In essence, Dr Lucire not only displayed a disregard for the NSW Medical Board, but she committed perjury, a criminal offence.

Yours sincerely, [signature] Dr Julian Parmegiani Consultant Psychiatrist

[* The name of the plaintiff in these proceedings has been withheld from publication on CaseLaw]

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